Tuesday, June 07, 2016

Lin-Manuel Miranda and the Future of Originalism

Richard Primus

Here are three candidates for what constitutional historians will be most interested in about the year 2016 when they look back on it from some time in the future: the candidacy of Donald Trump, the succession struggle that followed the passing of Justice Scalia, and Hamilton: An American Musical.  I've got an essay in The Atlantic that tries to show how they all fit together.  In brief, I suggest that Hamilton and the Trump candidacy are both manifestations of the same developments in American political identity and that Hamilton has the capacity to change important intuitions about constitutional law in the world after Justice Scalia. 

The essay is here:

The essay joins the conversation about the potential for the interpretive rubric of originalism to take on a more liberal valence in a world where the Supreme Court had a moderate-to-liberal median justice.  Implicit but not developed in the essay is this attitude: I expect that if the Court developed a liberal originalist jurisprudence, many liberal scholars who have been critics of originalism will be tempted, consciously or otherwise, to mute their reservations about originalism as a decisionmaking method.  To talk less and smile more.  I hope that I won't be among them, at least not in my scholarly role.  I think that role calls on its occupants to say what makes sense and what doesn't make sense about interpretive methods regardless of who is deploying those methods, which is to say that a decision whose outcome I like shouldn't get a pass for employing methods that I would describe as flawed when used to reach an outcome I didn't like. 

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